Terms of Service

Last Updated: October 12, 2017

Version 1.02.1

Capsule Media Inc. (“Capsule Media”, “we”, or “us”) offers a suite of services that allow users to store, archive, process, transmit, deliver, and share (collectively, the “Services”) their information and data. The Services are offered online through the website www.capsulemedia.com (the “Site”) and through the CapsulePRO media management platform. CapsulePRO is available only to registered account holders. Additional and custom services are available by contacting us sales@capsulemedia.com.

These Terms of Service cover the use of and access to the Site, the Services, and CapsulePRO. Our Privacy Policy describes, among other things, how we treat your personal data and protect your privacy while visiting the Site and/or using the Services.

PLEASE READ THESE TERMS OF SERVICE AND THE PRIVACY POLICY CAREFULLY.

By using or accessing the Services, or by registering for a CapsulePRO account, you are automatically agreeing to be bound by these Terms of Service and the Privacy Policy, which together form a legally binding contract between you and Capsule Media. If you do not agree with these Terms of Service or the Privacy Policy, you should not use the Site, nor any of the Services, and you should not register for a CapsulePRO account.

1. DEFINITIONS

In addition to terms defined elsewhere in these Terms of Service, references to:

“Account Holder” means to a person or organization that has a registered CapsulePRO account;

“Client Content” means information and data that we receive, store, archive, process, transmit, deliver, or share on your behalf when providing any Service(s), whether through the Site or otherwise;

“Site Content” means all pages, screens, layouts, information, and materials included in or accessible through the Site (including any content available in any email or in relation to the Services), but specifically excludes Client Content; and

“you”, “your” and “yours” mean you, the person using or accessing the Services and/or CapsulePRO, and any party or organization on whose behalf you are so doing.

2. CHANGES TO THESE TERMS OF SERVICE

Capsule Media reserves the right to modify these Terms of Service at any time. We will post the most current version of these Terms of Service at the Site. If we make material changes to these Terms of Service, we will post advance notice on the Site and on the CapsulePRO login webpage. The continued use of the Services (through CapsulePRO or otherwise) after these changes go into effect means that you have consented to the updated Terms of Service. If you do not accept these changes, you must stop using the Services and, if applicable, cancel your CapsulePRO account by emailing accounts@capsulemedia.com.

Your use and access to the Site and the Services will be governed by the version of these Terms of Service that are posted and in effect at the time.

3. ACCESSING CAPSULEPRO

Access to the CapsulePRO media management platform is restricted to Account Holders and their representatives. You can register for a temporary, trial CapsulePRO account or a full-access CapsulePRO account.

Trial Accounts

You can register for a trial account by completing the online registration form available on the Site. Once the completed form has been submitted, an email containing a temporary user name and password, together with a login URL, will be sent to the address that you provided in the registration form. Trial accounts are active for a limited period of time and not all Services are available to these accounts. Upon expiration of your trial account, unless you register for a full-access account, we will delete all your Client Content.

Full-Access Accounts

Full-access accounts have access to the full suite of Services offered through CapsulePRO. You may choose to register for our free CapsulePRO plan, or one of our paid CapsulePRO plans, depending on your needs. The key features and pricing for the different plans is available on the Site. Additional information is set out in these Terms of Service will also be provided during the registration process. Plan pricing does not include any applicable sales taxes, levies, value-added taxes, or duties that may be imposed by taxing authorities; these charges will be added to your invoices and you are responsible for paying them. The free CapsulePRO plan has a monthly subscription term and renews automatically each month on the anniversary of your registration. The paid CapsulePRO plans have monthly and/or yearly subscription terms and renew automatically on the applicable anniversary of your registration.

Switching Plans

As your needs change, you may wish to switch to a different plan.

You can upgrade from a free plan to a paid CapsulePRO plan or from a lower-level paid plan to a higher level plan at any time. Upgrades are treated as a new subscription. You will receive credit for the time remaining on your current plan if you are upgrading from one paid plan to another.

You can downgrade from a higher-level paid CapsulePRO plan to a lower-level paid plan or the free plan only when the subscription term of your current plan expires. If you wish to downgrade your plan, you must notify us not less than seven (7) days before your current subscription term expires. For example, if you are registered for a plan that renews on June 15th, you must notify us of your intention to downgrade on or before June 8th.

Cancellations

You can cancel your CapsulePRO account at any time by emailing accounts@capsulemedia.com. Your email must include the full name of the Account Holder as well as the effective date of cancellation. Please note that we are not able to backdate cancellation. Unless otherwise required by law, refunds will not be issued for any remaining time on a paid plan.

If you do not cancel in accordance with these Terms of Service, your plan will automatically renew at the then-current price.

Changes to Paid Plan Pricing

We reserve the right to change the pricing for paid plans. We will we will post advance notice on the Site and on the CapsulePRO login webpage. Price changes will only be applied on the renewal of an Account Holder’s plan.

If you do not agree to the change in pricing, you can downgrade or cancel your account by following the instructions for downgrades or cancellations, as applicable, in these Terms of Service.

4. RATE CARD

The rates associated with each Service available through CapsulePRO are specified in the rate card (“Rate Card”) that is in effect at the time. A Rate Card is provided as part of the registration process for a full-access account.

For most Services, the rates are charged based on either file size or running time of a video file. When you use a Service, you are agreeing to pay all charges based on the Rate Card.

The Rate Card does not include any applicable sales taxes, levies, value-added taxes, or duties that may be imposed by taxing authorities; these charges will be added to your invoices and you are responsible for paying them.

We may change the rates for any Service or otherwise modify the Rate Card at any time. We will post advance notice on the Site and on the CapsulePRO login webpage. The continued use of the Services (through CapsulePRO or otherwise) after these changes or modifications go into effect means that you are consenting to them. If you do not accept these changes or modifications, you must stop using the Services.

5. CUSTOM SERVICES

Should you have a requirement for a service that is not listed or priced on the Rate Card, please contact us to discuss your project sales@capsulemedia.com. We will provide you with a quote via email. The terms and conditions relating to the provision of any custom Service will be subject to these Terms and Conditions or other terms and conditions that we will specify to you in the quote.

6. BILLING/PAYMENT

We will invoice each Account Holder for all charges and fees (plus applicable taxes, levies and/or duties) incurred during each billing period. The terms of payment will be based on the terms established between the Account Holder and Capsule Media and will be indicated on each invoice.

If you do not pay your invoices in full and on time, we reserve the right to suspend or downgrade your CapsulePRO account until you do so.

Unless otherwise indicated, all fees and charges are in Canadian currency. Unless otherwise agreed to in writing by Capsule Media, all payments are to be made in Canadian currency.

7. MINORS

The Site and the Services are directed to people who are at least 18 years old or older. We will not knowingly create a CapsulePRO account for someone who is under 18 years of age.

8. SECURITY

It is your sole responsibility to take reasonable and appropriate precautions against any computer virus or other destructive materials or elements, and to ensure that your device(s) and network(s) that you use to access the Site, the Services, and/or CapsulePRO are adequately secured against any unauthorized users and that you keep user names and passwords secure and confidential.

You are wholly responsible for the use of the Site and/or Services by any person using your device and/or your CapsulePRO account and you must ensure that any such person complies with these Terms of Service including, without limitation, the Acceptable Use Policy in Section 11.

9. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION

By registering for a CapsulePRO account or by using any Service(s), you understand that we may send you email messages and other communications regarding the Services, such as: (a) notices about your use of the Services, including invoices; (b) updates to the Services and new features or products; and (c) promotional information and materials regarding Capsule Media’s products and services. You may unsubscribe from certain communications by following the instructions in the message. However, If you do not consent to receive notices (other than promotional materials) electronically, you must stop using the Services.

Notices emailed to you will be considered given and received when the email is sent.

10. CLIENT CONTENT

You retain full ownership of any intellectual property rights that you hold in your Client Content.

You are responsible for: (a) all Client Content you store, archive, process, transmit, deliver, or share using the Services, and (b) making sure that you have all the rights you need or require to the Client Content. In addition, by storing, using or transmitting Client Content you cannot and will not violate these Terms of Service (please also see the Acceptable Use Policy in Section 11).

When you use the Services, you give Capsule Media and our agents and service partners a worldwide license to store, archive, process, transmit, deliver, and share your Client Content and other information which we may obtain as part of your use of the Services but only: (i) as necessary for us to provide the Services, (ii) as otherwise permitted by these Terms of Service, or (iii) as otherwise required by law, regulation or order.

11. ACCEPTABLE USE POLICY

This acceptable use policy (“Acceptable Use Policy”) describes acceptable use of and access to the Site and/or the Services. By accessing or using the Site and/or the Services, you agree to this Acceptable Use Policy.

PROHIBITED USE AND CONTENT. You may not use the Site and/or the Services in a manner that:

violates any local, provincial, national, foreign, or international statute, regulation, rule, order, treaty, or other law;

violates or otherwise encroaches on the rights of others, including, but not limited to, infringing or misappropriating any intellectual property or proprietary right of another;

advocates or induces illegal activity;

stalks, harasses, or harms anyone, including minors;

modifies, alters, tampers with, repairs, or otherwise creates derivative works of any software included in the Services;

sells the Services, unless specifically authorized to do so;

except as allowed by local law, reverse engineers, disassembles, or decompiles the Services or software included in the Services;

accesses or uses the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;

interferes with or disrupts the Services or servers or networks connected to the Services;

interferes with or disrupts any part of the Site, any Site Content, or any content available in any email in relation to the Services;

deep link to, frame, spider, harvest, or scrape the Site Content or otherwise access the Site Content for any purpose, or use machine, electronic, web-based, or similar device to read or extract the Site Content by machine-based or automated means;

uses any high volume automated means (including robots, spiders, scripts or similar data gathering or extraction methods) to access the Services or any other accounts, computer systems, or networks connected to the Services (each a “System“);

attempts to gain unauthorized access to any portion of the Services or any System, whether through hacking, password mining, or any other means;

violates the security or integrity of a System, including, but not limited to:

accessing or using any System without permission, including attempts to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System;

monitoring data or traffic on a System without permission;

forging packet or email headers, or any part of a message describing its origin or route;

uploading, processing, transmitting, delivering, or sharing Client Content that contains viruses, worms, corrupt files, Trojan horses, or other forms of corruptive code, or any other content that may compromise the Services; or

hacking, destabilizing, or adapting the Services, or altering another website to falsely imply it is affiliated with the Services;

connects to any users, hosts, or networks where you do not have permission to communicate with such users, hosts, or networks, including, but not limited to:

monitoring or crawling a System so that such System is impaired or disrupted;

conducting denial of service attacks;

intentionally interfering with the proper functioning of any System, including any deliberate attempt to overload a system by any means;

operating network services like open proxies, open mail relays, or open recursive domain name servers; or

using means (manual or electronic) to avoid any use limitations placed on a System, such as access and storage restrictions;

any conduct (including, without limitation, engaging in behaviour that results in any server being the target of a denial of service attack) that is likely to result in retaliation against Capsule Media, our network or website(s), our employees, officers, directors, affiliates, agents, or subcontractors.

If Capsule Media, in its sole and unfettered discretion, believes that a violation or breach of this Acceptable Use Policy has occurred, we may take all or any of the following actions:

advise you of the violation or breach and require that you take corrective action within a specified time period (such time period to be determined by Capsule Media in its sole and unfettered discretion);

issue a warning to you;

suspend or terminate your access to and use of the Site, the Services and/or your CapsulePRO account;

remove or disable access to any Client Content that we believe violates this Acceptable Use Policy or any other agreement that Capsule Media has with you for the use of the Services;

notify law enforcement agencies, regulators, or other appropriate third parties;

take legal action against you; or

such other action as we, in our sole and unfettered discretion, deem appropriate.

To the fullest extent permitted by law, we exclude liability for actions taken or not taken in response to breaches of this Acceptable Use.

12. SUSPENSION AND TERMINATION OF SERVICE

We reserve the right to suspend or terminate your access to the Service at any time in our sole discretion. You understand that if your account is suspended or terminated, you may no longer have access to your Client Content.

Upon termination you may request access to your Client Content, which we will make available, except in cases where we have terminated your account due to your violation of these Terms of Service. You must make such request within 14 days following termination otherwise, any Client Content you have stored with the Services may not be retrievable and we will have no obligation to maintain Client Content stored in your account after this 14-day period.

13. SUBCONTRACTORS

Capsule Media shall be en­ti­tled to ap­point one or more third-party subcon­trac­tors or service providers to carry out all or any of the Services.

14. SOFTWARE IN OUR SERVICES

When the Services require or include downloadable software, this software may update automatically on your device as new versions or features are made available.

Capsule Media gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided by Capsule Media as part of the Services. You may not copy, modify, distribute, sell, or lease any part of our Services or included software.

15. COPYRIGHT COMPLAINTS AND REMOVAL POLICY

Capsule Media respects the intellectual property of others and will respond to notices of alleged copyright infringement that comply with the law. We reserve the right to delete or disable Client Content alleged to violate copyright laws or these Terms of Service and reserve the right to terminate the CapsulePROaccount(s) of violators.

If you believe there has been a violation of your intellectual property rights, please contact us legal@capsulemedia.com.

16. CLIENT CONTENT STORAGE

Capsule Media archives and stores Client Content exclusively in Canada. Services (other than storage of Client Content) are provided primarily from Canada. The Site and certain of Capsule Media’s record-keeping and data processing are hosted/processed in the United States.

You may access the Site, Services, and/or your CapsulePRO account from anywhere in the world; however, when you do so, your data and information (including personally identifiable information) could become subject to the laws of the jurisdiction where you are then located.

Client Content is automatically archived on a regular basis, as determined by Capsule Media. There may be times when we archive Client Content in between regular intervals. Once Client Content is archived, the content must be restored online before it can be processed, transmitted, delivered, or shared. Once you select a file(s) to be restored, the time for the restore command to be initiated depends on your CapsulePRO plan. For free CapsulePRO plans, it can take up to one (1) full business day for the restore command to be initiated; for paid plans the restore command will generally be initiated within a few hours. Once a restore command is initiated, regardless of your CapsulePRO plan, the time until the content is available online will depend upon the size of the file(s) being restored (the larger the file, the longer it will take to restore). In these Terms of Service, the term “business day” means any day except Saturday, Sunday, or statutory holiday, that commercial businesses located in Toronto, Ontario, Canada are generally open for business.

17. UPDATES AND MODIFICATIONS TO THE SERVICE

We can make necessary deployments of changes, updates or enhancements to the Services at any time. We may also add or remove functionalities or features, or we may suspend or stop the Services altogether.

18. CAPSULE MEDIA PROPRIETARY RIGHTS

Using the Services, whether through a CapsulePRO account or otherwise, does not grant you ownership of any intellectual property rights in the Site or the Services, including, without limitation, any and all content, design, software, applications, text, or other materials included or accessible through the Site or the Services (including any content available in any email in relation thereto) (collectively, the “IP Stuff”). Capsule Media and/or its licensors own and reserve all right, title, and interest in and to the Site, the Services, and the IP Stuff, other than the limited, non-exclusive rights we expressly grant to you under these Terms of Service. No title to or ownership of any pro

If you provide comments, suggestions, or recommendations to Capsule Media about the Site or any Service (e.g., modifications, enhancements, or improvements), you are automatically assigning this comment, suggestion, or recommendation (and all intellectual property rights therein) to Capsule Media.

19. LINKS TO THE SITE

Neither you nor any other party may use any part of the Site on any other website or link any other website to the Site, without the prior written consent of Capsule Media.

From the Site we may provide information or hyperlinks to other websites or pages provided by other parties. Your use of other parties’ websites will be subject to their own terms and conditions, which you should read carefully. If you decide to visit any third party website, you do so at your own risk. We are not responsible for the content, accuracy, or opinions expressed in such websites. Links do not imply that we or this Site is/are affiliated or associated with such websites.

20. NO WARRANTY OR CONDITIONS

TO THE MAXIMUM EXTENT PERMITTED BY LAW, CAPSULE MEDIA AND ITS AFFILIATES (AND ASSOCIATED SUBCONTRACTORS, SERVICE PROVIDERS, AND LICENSORS) (A) PROVIDE THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, (B) MAKE NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED (E.G. WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT), AND (C) DO NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, MEET ALL YOUR REQUIREMENTS AT ALL TIMES, THAT CLIENT CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

ALL CONTENT DOWNLOADED, UPLOADED, STORED, ARCHIVED, PROCESSED, TRANSMITTED, DELIVERED, SHARED AND/OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE(S) IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER EQUIPMENT OR DEVICES, INCLUDING BUT NOT LIMITED TO, LAPTOP COMPUTERS, DESKTOP COMPUTER, TABLETS, SMARTPHONES AND SMARTWATCHES, OR ANY DATA LOSS RESULTING FROM DOWNLOAD OR USE OF ANY SUCH ABOVE MENTIONED MATERIAL.

21. INDEMNIFICATION

To the extent not prohibited by law, you will defend Capsule Media, its affiliates, resellers, officers, directors, employees, agents, suppliers, subcontractors, and licensors against any claims, demands, damages, costs, liabilities, and expenses (including without limitation legal costs) arising from any portion of these Terms of Service including without limitation the Acceptable Use Policy.

22. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CAPSULE MEDIA, ITS AFFILIATES, RESELLERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, SUBCONTRACTORS, AND/OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF CAPSULE MEDIA HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

THE AGGREGATE LIABILITY OF CAPSULE MEDIA AND ITS AFFILIATES, RESELLERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, SUBCONTRACTORS, AND/OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE MOST RECENT MONTHLY OR YEARLY FEE THAT YOU PAID FOR YOUR CAPSULEPRO ACCOUNT; OR (B) ONE HUNDRED DOLLARS ($100 CAD). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

23. DISPUTE RESOLUTION AND GOVERNING LAW

You must comply with all domestic and international export laws and regulations that apply to your use of the Services, such as software. These laws include restrictions on destinations, end users, and end use.

Regardless of where you reside, you agree that these Terms of Service, and your relationship with Capsule Media will be governed by the laws of the Province of Ontario, Canada regardless of conflict of laws principles. We both agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service. We both agree that all of these claims can only be litigated in the courts of the Province of Ontario, Canada and we each agree to personal jurisdiction in those courts. However, you agree that Capsule Media can apply for injunctive remedies in any jurisdiction.

24. MISCELLANEOUS

Headings

The sub­ject head­ings of these Terms and Con­di­tions are in­cluded for pur­poses of con­ve­nience only and shall not af­fect the con­struc­tion or in­ter­pre­ta­tion of any of its con­di­tions

Force Majeure

Capsule Media shall not be in default if failure to perform any obligation is caused solely by supervening conditions beyond its control, including without limitation acts of God, civil commotions, strikes, labour disputes, and governmental demands or requirements.

Severability; Entire Agreement.

These Terms of Service apply to the maximum extent permitted by relevant law. If any part of these Terms of Service is found by any applicable court or other competent authority to be invalid, unlawful, or unenforceable, then such part shall be severed from the rest of the Terms of Service which shall continue to be valid and enforceable to the fullest extent permitted by law. These Terms of Service and the Privacy Policy are the entire contract between you and us regarding the Service(s) and, if applicable, your CapsulePRO account, and they supersede any prior contract or oral or written statements regarding your use of same.

Assignment and transfer.

We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service(s) and/or CapsulePRO, without Capsule Media’s prior written consent.

Waiver

The failure of Capsule Media to insist upon or enforce strict performance of any of the provisions of these Terms of Service or to exercise any rights or remedies under these Terms of Service will not be construed as a waiver or relinquishment to any extent of such right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.